PRESENT: All the Justices 

E.I. DU PONT DE NEMOURS AND COMPANY 

v. Record No. 011739 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 7, 2002 

BRENDA G. EGGLESTON 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Brenda G. Eggleston was employed by E.I. du Pont de Nemours 

and Company (Du Pont). During her employment, she received 

temporary incapacity payments under the Workers' Compensation 

Act for three different injuries arising out of her work. 

Eggleston was diagnosed with work-related bilateral carpal 

tunnel syndrome on September 28, 1989. She was awarded 

temporary total incapacity benefits for a four-week period from 

September 26, 1990 through October 30, 1990 and permanent 

partial incapacity benefits from January 30, 1992 through July 

29, 1992. Next, Eggleston received temporary total incapacity 

benefits for a five-week period in 1992 as a result of an injury 

to her right shoulder.

 On March 9, 1993, Eggleston was awarded temporary partial 

incapacity benefits of $74.35 per week based on a diagnosis of 

bilateral gamekeepers' thumb. Although Du Pont did assign 

Eggleston to light duty work because of her physical conditions, 

ultimately Du Pont terminated Eggleston for medical reasons on 

November 30, 1993.
 Immediately following her termination and while receiving 

temporary partial incapacity benefits for the gamekeepers' thumb 

injury, Eggleston filed an application for a change of condition 

seeking temporary total incapacity benefits under her 

gamekeepers' thumb claim, but later, by amended application, 

sought permanent incapacity benefits, based on all three 

injuries. Following a hearing in 1994, the deputy commissioner 

awarded Eggleston temporary total incapacity benefits stating

that Eggleston's "physical limitations are the result of 

bilateral gamekeepers thumb, bilateral carpal tunnel syndrome 

and right shoulder problems." The amount of the weekly payment

was based on Eggleston's wages at the time she suffered her 

gamekeepers' thumb injury. Du Pont did not appeal the decision 

of the deputy commissioner. 

 In February 1999, Du Pont filed a change in condition 

application under all three of Eggleston's claim files, seeking 

various reductions in, and credits for, the incapacity payments 

it was making. As relevant to this appeal, Du Pont asserted 

that Eggleston's gamekeepers' thumb injury had resolved itself 

and that the incapacity award should be appropriately reduced. 

Du Pont also asserted that it was entitled to a weekly credit 

against each injury toward the 500-week maximum recovery period 

established by Code § 65.2-518, rather than a credit limited to 

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the gamekeepers' thumb injury, the crediting mechanism imposed 

by the Commission.

Based on the evidence produced, the deputy commissioner 

concluded that the gamekeepers' thumb injury had resolved 

itself, and went on to hold that because the 1994 award was 

"based upon a finding that the claimant was disabled in part 

from all three compensable conditions, the employer has now 

established that the claimant's disability is due only to her 

two remaining conditions: bilateral carpal tunnel syndrome and 

the right shoulder injury." The deputy commissioner directed 

that the weekly incapacity payment be based on Eggleston's 

highest weekly wage at the time she was diagnosed with bilateral 

carpal tunnel syndrome and that the payments made under the 

award be credited against the bilateral carpal tunnel injury 

claim.

The deputy commissioner denied Du Pont's request that it 

receive credit against each of the underlying injuries, rather 

than just the gamekeepers' thumb injury, for each week that it 

paid the 1994 award, concluding that such credit was not 

authorized under the Workers' Compensation Act and, therefore, 

the weekly payments under the 1994 award had been properly 

credited to the gamekeepers' thumb injury only. The decision of 

the deputy commissioner was affirmed by the Commission and by 

the Court of Appeals. E.I. du Pont de Nemours and Co. v. 

3
Eggleston, Record No. 2648-00-2, 2001 Va. App. LEXIS 394 (Va. 

App. July 3, 2001) (unpublished). On appeal, Du Pont again 

asserts that it was entitled to a credit for purposes of Code 

§ 65.2-518 against each of Eggleston's injuries for each payment 

it made pursuant to the 1994 award. 

 We begin our analysis of the issue presented in this appeal 

mindful of two principles to be applied when considering 

benefits and awards available under the Workers' Compensation 

Act, Code §§ 65.2-100 through –1310 (the Act). First, "[t]he 

right to compensation under the workmen's compensation law is 

granted by statute, and in giving the right the legislature had 

full power to prescribe the time and manner of its exercise." 

Winston v. City of Richmond, 196 Va. 403, 407, 83 S.E.2d 728, 

731 (1954). Second, the Act is remedial legislation and should 

be liberally construed in favor of the injured employee. Byrd 

v. Stonega Coke & Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729 

(1944). 

 As both the Commission and Court of Appeals recited, the 

General Assembly authorized crediting a single payment as more 

than one week for purposes of Code § 65.2-518, in only one 

instance. That instance is where the claimant is receiving a 

benefit for both a permanent loss and a benefit for partial 

incapacity. Code § 65.2-503(E)(2) authorizes an employer to 

make a single payment comprised of the amount due an employee 

4
pursuant to an award of permanent loss (Code § 65.2-503) and 

partial incapacity (Code § 65.2-502) and provides that such 

single payment must be credited as two weeks compensation for 

purposes of the 500-week compensation limitation. 

 This section, of course, does not apply in this case 

because this case involves one, not two, awards and does not 

involve an award for a temporary partial and a contemporaneous 

award for permanent loss. However, a well-recognized rule of 

statutory construction, expressio unius est exclusio alterius, 

provides that the mention of a specific item in a statute 

implies that other omitted items were not intended to be 

included within the scope of the statute. Smith Mountain Lake 

Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 

(2001); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 

96, 100 (2000); Board of Supervisors v. Wilson, 250 Va. 482, 

485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va. 124, 

127, 418 S.E.2d 886, 887 (1992). Thus, specifically allowing a 

simultaneous or double crediting for two awards under the 

circumstances contemplated by Code § 65.2-503(E)(2) and not 

providing for such double crediting for the purpose of Code 

§ 65.2-518 under any other circumstances, leads us to the 

conclusion that the General Assembly did not authorize or intend 

to authorize a double credit in circumstances in which the 

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General Assembly has not authorized either a combined payment 

for more than one award or a double credit for a single payment. 

 Nevertheless, Du Pont argues in this appeal that the 

failure to simultaneously credit the 1994 award against each of 

Eggleston's injuries violates Code § 65.2-518 by allowing more 

than 500 weeks of compensation for a single injury. 

 The difficulty in this case is the nature of the injury 

upon which the 1994 award was based. The relevant portion of 

the deputy commissioner's opinion in 1994 stated: 

 From the evidence we find that the claimant 

continues to have marked physical restrictions as 

revealed by the medical records and her own testimony 

at hearing. Claimant's physical limitations are the 

result of bilateral gamekeepers thumb, bilateral 

carpal tunnel syndrome and right shoulder problems. 

As a result of her physical limitations she was 

provided some light duty work with the employer but 

this did not prove to be consistent with her abilities 

and accordingly she was terminated from employment for 

physical reasons. Given this circumstance, we find 

ample justification for finding that the claimant 

. . . is not able to perform her pre-injury or even 

light duty work provided by her employer. 

The deputy commissioner also found that the claimant had tried 

to find other employment, but was unsuccessful. The deputy 

commissioner then proceeded to enter "[a]n award . . . for the 

payment of temporary total disability benefits." 

 The deputy commissioner unquestionably determined that the 

claimant qualified for temporary total incapacity benefits, but 

did not identify the specific injury upon which he based his 

6
award. The significance of this omission arises from the 

mandates of the Workers' Compensation statutes. Code § 65.2-506 

provides that a claimant may not receive compensation for more 

than one injury at a time and Code § 65.2-518 provides that a 

claimant may not receive more than 500 weeks of compensation for 

any injury.1 Identification of the injury is essential to the 

application of these statutes. 

 1

 Code § 65.2-518 provides that compensation "under this 

title shall in no case" exceed 500 weeks. As the parties agree, 

"in no case" refers to a 500-week limit on compensation per 

injury or occupational disease, not per claimant, per award, or 

per type of award. 

 Applying the 500-week limitation period to each injury has 

its roots in the history of the Act. The limitations period 

originally was found in the sections dealing with total and 

partial disability, originally sections 30 and 31 in Chapter 400 

of Acts 1918, respectively. The relevant language of those 

sections provided: 

Sec. 30. Where the incapacity for work 

resulting from the injury is total, the employer 

shall pay . . . to the injured employee during 

such total incapacity a weekly compensation . . . 

and in no case shall the period covered by such 

compensation be greater than five hundred weeks 

. . . . 

 Sec. 31. Except as otherwise provided in 

the next section hereafter, where the incapacity 

for work resulting from the injury is partial, 

the employer shall pay . . . to the injured 

employee during such incapacity a weekly 

compensation . . . and in no case shall the 

period covered by such compensation be greater 

than three hundred weeks from the date of the 

injury. In case the partial incapacity begins 

after a period of total incapacity, the latter 

period shall be deducted from the maximum period 

herein allowed for partial incapacity. 

7
 Du Pont's position that the award should be credited 

against each injury for purposes of the compensation limit of 

Code § 65.2-518 depends on its characterization of the award as 

a "combined award" based on three separate injuries. However, 

one award for three separate injuries violates Code § 65.2-506's 

prohibition against paying benefits for more than one injury at 

a time. 

 Du Pont made no attempt in 1994, and does not argue here, 

that the award was or should have been somehow apportioned among 

the three injuries based on each injury's contribution to the 

disabling condition, constituting in effect three awards. Nor 

did Du Pont seek to have the award attributed to a new "combined 

injury" distinct from the three separate injuries in order to 

insure compliance with Code § 65.2-506. 

 Furthermore, prior to this appeal, Du Pont did not argue 

that Eggleston's request for temporary total incapacity was 

 

 A plain reading of these two sections shows that the 

limitations period was applied to the injury. This language 

remained virtually unchanged until 1990, when the General 

Assembly eliminated the restriction regarding payment of partial 

disability for a period measured "from the date of the injury." 

Then, in 1997, the General Assembly deleted the limitation 

period from the partial and total temporary disability sections, 

Code §§ 65.2-500 and -502, and placed the 500-week limitation 

period in Code § 65.2-518. Nothing in the legislative history 

or case law since 1997 indicates that moving the 500-week 

limitation period to Code § 65.2-518 constituted a substantive 

change which would require applying the limitations period to 

something other than the injury.

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dependent on all three injuries and that, without any one of 

them, her incapacity claim would fail. The record shows that 

when Du Pont initiated the instant litigation in 1999, its 

application for change in condition asserted that one of the 

claimant's injuries, the gamekeepers' thumb, had resolved itself 

and asked the Commission to "reduce the amount of temporary 

total disability benefits being paid to the claimant." Du Pont 

did not ask that the 1994 award be terminated because one of the 

three injuries upon which the award was based no longer existed, 

thereby implicitly recognizing that the condition of temporary 

total incapacity did not necessarily require the existence of 

all three injuries. 

 We agree that, fairly read, the language of the deputy 

commissioner in his 1994 opinion implies, although it does not 

state, that he found the claimant's incapacity resulted from the 

three injuries. We also agree that the language gives rise to 

an inference that some combination of the injuries supported the 

award for temporary total incapacity. However, neither of these 

inferences provides sufficient guidance to resolve the question 

of whether the 1994 award should have been simultaneously 

credited against each of Eggleston's injuries for purposes of 

the 500-week compensation limitation. Thus, we turn to the 

applicable case law and the Commission's actions in handling the 

1994 award. 

9
 The workers' compensation statutes do not address the 

proper treatment of a single award that is based on a 

combination of injuries. However, workers' compensation case 

law developed by the Court of Appeals provides some guidance. 

The Grief Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 

553, 471 S.E.2d 803, 807 (1996), involved two injuries which 

"together caused total disability." In that case, the 

Commission had determined that the claimant's temporary total 

disability was " 'due partially to her right hand condition and 

partially to the left. It cannot be determined which condition 

is predominately disabling.' " Id. at 550, 471 S.E.2d at 805-

06. The right hand condition had predated the left hand 

condition and, based on that condition, the claimant was 

receiving temporary total disability benefits at the time the 

left hand condition arose. Id. The Court of Appeals concluded 

that because the condition of the left hand "contributes to" the 

total incapacity, that condition "may properly be considered the 

basis for a total incapacity award." Id. at 553, 471 S.E.2d at 

807. The Court of Appeals went on to instruct that, pursuant to 

Code § 65.2-5062, the total incapacity award should be paid for 

 2

 Code § 65.2-506, in its entirety, reads: 

Compensation after second injury in same employment. – 

If an employee receives an injury for which 

compensation is payable while he is still receiving or 

entitled to compensation for a previous injury in the 

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the left hand first and, when that compensation was exhausted or 

the condition resolved itself, the temporary total incapacity 

award the claimant had been receiving for the right hand should 

be resumed, "if justified." Id.

 The rule of the Grief case is that where more than one 

injury contributes to the incapacitating condition, a component 

injury may be the basis for the temporary total incapacity 

award. When that injury resolves itself or the compensation 

limitation of Code § 65.2-518 is reached, the claimant can 

continue to receive temporary total incapacity benefits based on 

the other component injury only if the evidence still supports a 

finding that the claimant is totally incapacitated based on the 

other component injury. 

 The procedure prescribed by the Court of Appeals in the 

Grief case is precisely the process employed by the Commission 

 

same employment, he shall not at the same time be 

entitled to compensation for both injuries, but if he 

is, at the time of the second injury, receiving 

compensation under the provisions of § 65.2-503, 

payments of compensation thereunder shall be suspended 

during the period compensation is paid on account of 

the second injury, and after the termination of 

payments of compensation for the second injury, 

payments on account of the first injury shall be 

resumed and continued until the entire amount 

originally awarded has been paid. However, if, at the 

time of the second injury, he is receiving 

compensation under the provisions of § 65.2-502, then 

no compensation shall be payable on account of the 

first injury during the period he receives 

compensation for the second injury. 

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in this case. The Commission treated the deputy commissioner's 

1994 award as an award based on the condition resulting from 

three separate injuries. The gamekeepers' thumb injury 

contributed to the condition causing the total loss of earning 

capacity, that is the temporary total incapacity, and as such 

could be considered as the basis for the award. Accordingly, 

the Commission, as in Grief, attributed the award to the 

gamekeepers' thumb injury. When that injury resolved itself, 

following the hearing on Du Pont's application for change in 

condition, the deputy commissioner determined that "the employer 

has now established that the claimant's disability is due only 

to her two remaining conditions."3 Again, as in Grief, because 

the continued compensation was "justified," the compensation 

award could be based on a component of the disabling condition 

and that component, the carpal tunnel injury, would be credited 

with the award until that injury resolved itself or the 

compensation limit for that injury was reached. 

 Nothing in this procedure allows the claimant to recover 

more than 500 weeks of compensation for any one injury nor is 

compensation for each component injury guaranteed. Following 

resolution of or compensation exhaustion for the initial injury, 

 3

 Although Grief suggests that the claimant bears the burden 

to establish continued disability, in this case Du Pont 

apparently did not dispute Eggleston's continued disability 

12
Eggleston carries the burden of showing that a component injury 

continues to support a finding of temporary total incapacity. 

 Accordingly, because the circumstances of this case do not 

come within the provisions of the Workers' Compensation Act that 

authorize the Commission to credit a single payment as more than 

one week compensation for purposes of Code § 65.2-518 and 

because the crediting procedure followed by the Commission in 

this case did not result in a violation of Code § 65.2-518, we 

will affirm the judgment of the Court of Appeals. 

Affirmed.

 

because it did not appeal the 2000 ruling of the deputy 

commissioner in this regard. 

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